Musings: Selective Audit

Kauai County Auditor Ernie Pasion failed to investigate the unauthorized use of county vehicles and fuel by top officials in the Office of Prosecutor, even though former Prosecutor Shaylene Iseri had admitted that she, former first deputy Jake Delaplane and an investigator were taking cars home — a violation of state law.

Instead, Pasion focused solely on a gas audit that targeted the mayor and a county parks worker.

In early August 2011, the auditor's office received an anonymous letter alleging that Iseri and Delaplane were “routinely using county-owned vehicles for personal use purposes, including commuting, daily errands and the like,” according to a deposition by former staff auditor Ron Rawls, who is suing the county for whistle-blower retaliation.

On Aug. 3, 2011, Pasion sent Iseri an email advising her that a fuel audit was under way, and asking her for a list of all county-owned vehicles that were being used on a take-home basis by the OPA. 

On Aug. 5, 2011, Iseri responded with a letter acknowledging that she, Delaplane and investigator John Burgess were using the agency's three vehicles on a take home basis. Iseri claimed that she and Delaplane were on “24-hour call for police matters,” and that Burgess took home a vehicle only with her prior approval.

However, a June 10, 2009 county memo with spreadsheet clearly delineated which county employees were allowed to vehicles home. No OPA workers were included on the list. Instead, take home vehicles were limited specifically to employees in KPD, the fire department, public works and civil defense. Anyone not on the list had to obtain written approval from the mayor. There is no record that Iseri ever sought or secured such approval.

Pasion apparently was fully aware of the memo, which is cited as appendix 2 in the the 2011-12 Audit of County Vehicles report posted on the auditor's website.

Meanwhile, the auditor's office had contracted with the McCorriston law firm to conduct an extended audit into Mayor Bernard Carvalho's possible inappropriate use of county fuel when the OPA vehicle use surface. In his deposition, Rawls said the situation at OPA was “quite analogous” to the mayor's fuel use and he felt it should be part of the McCorriston inquiry. “Auditor Pasion objected.”

Rawls said he ultimately managed to convince Pasion to let him share the anonymous letter, Iseri's letter and other documentation with McCorriston investigators, who “immediately recognized” that the OPA's use of vehicles and fuel should be investigated “in conjunction with the mayor's fuel use," the deposition states.

“The investigators were unequivocal in their position and cited the likelihood of serious prosecutorial problems arising from the appearance of 'selective prosecution' if different audit/investigation standards were applied to different individuals,” Rawls stated in his deposition.

“Nonetheless, in early-September 2011, Auditor Pasion contacted the McCorrison investigators and directed them to focus their efforts first on investigating the possible misuse of fuel by the mayor and secondly on a parks department employee was appeared to have misappropriated gasoline by way of county 5-gallon cans. The same month, Auditor Pasion specifically directed the investigators to not investigate the use of fuel by any other employees, including the prosecuting attorney and her first deputy,” the deposition states. 

Rawls goes on to claim:

It was clear to me that Auditor Pasion was trying to quash or postpone indefinitely any investigation into possible unauthorized use of county-purchased fuel (and a county-owned vehicle) by the Prosecuting Attorney — in violation of the scope of the audit and in violation of State and County Law.

I have also come to learn that Mr. Pasion is a close political ally of the former Prosecuting Attorney [Iseri]. On the contrary, I have observed that Auditor Pasion openly disdains and disparages Mayor Carvalho.

Though the auditor's office never did investigate Iseri and Delaplane's unauthorized use of county vehicles, I initiated a public records request to determine whether the two were using county gas in the vehicles they were taking home.

County “gasboy” records show that a total of 1,018 gallons of fuel were dispensed to the 2005 Exterra that Iseri was using, between Jan. 1, 2011 and Nov. 30, 2012, when she left office. The vehicle was driven 17,198 miles during that time.

The 2005 Toyota Prius assigned to Delaplane consumed 302 gallons of gas during the same period and was driven 13,428 miles.

The 2004 Chevy Cavalier assigned to the investigator used 26 gallons of gas and was driven 316 miles during the same 23-month period.

Though the 2011-12 Audit of County Vehicles claims that its scope included “all county vehicles,” it makes no reference to the OPA's unauthorized use of vehicles and fuel. However, it does state that using a vehicle for commute purposes is considered an employee benefit by the IRS, which requires “the fair market value of such benefits be included in an employees' wages.”

The county began cracking down on the number of employees allowed to take vehicles home as a cost-savings measure in Jan. 3, 1996. In October 1998, the Kauai Police Department implemented a take home vehicle policy that included a restriction against patronizing “establishments that may invite unfavorable comments or reflect negatively on the department (e.g., bars and nightclubs.) The policy included no provision for authorizing vehicle use by prosecutors.

In November 2002, then-Mayor Maryanne Kusuka again distributed the policy on take home use of county vehicles to all department heads. The policy clearly stated that no person, other than the mayor, could take home a county car without a written permit issued by the mayor upon the written recommendation of the Finance Director.

The policy included a reference to HRS Chapter 105, which states “penalties for violation of this policy shall include a fine of not more than $50 or imprisonment of not more than 10 days or both.” The law also includes provisions for firing any person twice guilty of violating the policy.

The statute of limitations in the OPA vehicle use has not expired.